* Pursuant to 5 TH C IR . R. 47.5, the Court has determined that

this opinion should not be published and is not precedent except

under the limited circumstances set forth in 5 TH C IR . R. 47.5.4. United States Court of Appeals

Fifth Circuit



## FILED

June 3, 2004

Charles R. Fulbruge III

Clerk UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_______________________

No. 03-41215

_______________________

KALVIN BUCKLEY; TERANCE FLENOY; WILKEN MICKEY;

A. J. HUNT,

Plaintiffs - Appellants,

versus

DONOHUE INDUSTRIES INC.,

Defendant - Appellee.

Appeal from the United States District Court

for the Eastern District of Texas - Lufkin Division

No. 9:01-CV-345

Before JONES, BENAVIDES, and CLEMENT, Circuit Judges.

PER CURIAM: *

In this appeal, Appellants challenge the district court’s

decision to set aside the entry of default, to deny Appellants’

motion for extension of time to file a response to defendant’s

motion for summary j udgment, to deny Appellants’ motion for

reconsideration, and to grant summary judgment in favor of the

defendant on Appellants’ Title VII discrimination claims. We

AFFIRM the district court in all respects.2 I. BACKGROUND

Appellants were all long-time employees of Donohue’s

paper mill in Lufkin, Texas. From 1999 to 2001, Donohue underwent

a significant modernization of its equipment, including the paper

mills. Specifically, Donohue introduced the new “Number 8” paper

machine in 2001 and sim ultaneously phased out three older mills.

The Number 8 machine was completely different from Donohue’s older

machines, requiring emp loyees assigned to that mill to undergo

extensive training. In anticipation of the Number 8 employee

selection process, Donohue met with the local union to discuss the

process and the criteria to be used. This meeting was memorialized

by an agreement between Donohue and the union regarding the

selection process. Subsequently, all employees eligible to apply

for a position on the Number 8, including Appellants, were sent

information packets describing the position and certain essential

qualifications.

Eighty candidates, including all four Appellants, applied

for 33 available positions on the Number 8. After a selection

process that included a written assessment and oral interview, none

of the appellants was selected for a position on the Number 8. Of

those employees selected, 28 were white (43 per cent of the white

applicants), four were African-American (31 per cent of the

African-American applicants), and one was Hispanic (50 per cent of

the Hispanic applicants). Subsequently, Appellants filed charges3

of discrimination with the Texas Commission on Human Rights and the

EEOC. After receiving an EEOC right-to-sue letter, Appellants, all

African-Americans, filed suit on December 31, 2001, alleging racial

discrimination in violation of Title VII.

On October 28, 2002, th e district court ordered that

default be entered against Donohue, as no answer was on file at

that time. Donohue argued that due to human error in its corporate

mail room, it was unaware of the existence of the lawsuit until it

received service of the entry of default. The district court set

aside the entry of default.

Other than sitting for their own depositions, Appellants

conducted no discovery within the discovery period. Donohue filed

a motion for summary judgment but Appellants filed no timely

response. Five days after the deadline, they sought to extend time

to file a response. The district court denied the motion and

ultimately granted Donohue’s motion for summary judgment.

Appellants then filed a motion for reconsideration, which the

district court also denied. This appeal followed.

II. DISCUSSION

For each of the above-referenced non-dispositive motions,

we review the district court’s ruling for abuse of discretion. S ee

Lacy v. Sitel Corp.

, 227 F.3d 290, 292 (5th Cir. 2000) (entry of

default); Latham v. Wells Fargo Bank, N.A.

, 987 F.2d 1199, 12024

(5th Cir. 1993) (extension of time); Briddle v. Scott

, 63 F.3d 364,

379 (5th Cir. 1995) (reconsideration).

Appellants first argue that the district court abused its

discretion by setti ng aside the entry of default. F E DERAL R ULE OF

C IVIL P ROCEDURE 55(c) allows a court to set aside an entry of default

on a showing of good cause. F E D

. R. C IV

. P. 55(c). In making this

determination, the court should consider (1) whether the default

was willful; (2) whether setting it asi de would prejudice the

adversary; and (3) whether a meritorious defense is presented. C JC

Holdings, Inc. v. Wright & Lato, Inc.

, 979 F.2d 60, 64 (5 th Cir.

1992). The district court properly applied this standard in

deciding to set aside the entry of default. Donohue provided ample

evidence to show that the default was indeed inadve rtent and

anomalous, and the consequence of granting the motion was to simply

require Appellants to prove their case. The district court did not

abuse its discretion in this regard.

Next, Appellants argue that the district court abused its

discretion in denying Appellants’ motion for extension of time to

file a response to Donohue’s motion for summary judgment. F EDERAL

R ULE OF C IVIL P ROCEDURE 16(b) allows the district court to modify a

scheduling order only upon a showing of good cause. F E D

. R. C IV

. P.

16(b). The good cause standard requires the party seeking relief

to show that the deadline cannot be met despite that party’s

diligence. S&W Enters., L.L.C. v. SouthTrust Bank of Ala., N.A.

,

315 F.3d 533, 535 (5th Cir. 2003) . Appellants’ counsel did not5

seek an extension of time until after the scheduling deadline had

passed. Additionally, Donohue proved to the district court that,

despite Appellants’ protestations to the contrary, Appellants

received the motion for summary judgment on time and enjoyed the

full allotted time to prepare a response. The district court did

not abuse its discretion in denying the motion.

Appellants further argue that the district court abused

its discretion in denying the motion for reconsideration. Under

F EDERAL R ULE OF C IVIL P ROCEDURE 60(b)(1), Appellants must show “mistake,

inadvertence, surprise, or excusable neglect” to obtain relief from

the judgment. F E D

. R. C IV

. P. 60(b)(1). Appellants seem to argue

that their failure to file a timely response to Donohue’s motion

for summary judgment constituted “excusable neglect.” However, as

discussed a bove, Appellants received the motion for summary

judgment we ll within the scheduled period to prepare a response.

Even so, Appellants’ counsel did not request an extension of time

until five days after the deadline. Given these circumstances, the

district court did not abuse its discretion in denying Appellants’

motion.

Finally, Appellants challenge the district court’s grant

of summary judgment in favor of Donohue. We review a district

court’s grant of summary judgment de novo and apply the same

standard as the district court. G owesky v. Singing River Hosp.

Sys.

, 321 F.3d 503, 507 (5th Cir. 2003). Even considering

Appellants’ response to Donohue’s motion for summary judgment,6

which essentially mirrors their brief to this court, we find that

the district court correctly granted summary judgment in this case.

To meet their prim a facie burden under Title VII,

Appellants must show that (1) they belong to a protected class;

(2) they were qualified for the position sought; (3) they were

rejected for that position; and (4) they were replaced by someone

outside the protected class. P rice v. Fed. Express Corp.

, 283 F.3d

715, 720 (5th Cir. 2002). Appellants fail to satisfy the second

and fourth prongs of this test.

Appellants point to no record evidence tending to prove

that they were qualified for positi ons on the Number 8. Despite

Donohue’s publication of “essential employee elements” in advance

of the selection proc ess, Appellants incredibly argue that they

were unaware of any qualifications for the position. In addition,

Appellants merely state their subjective belief that they are

qualified. An employee’s subjective belief of discrimination

cannot be the basis of judicial relief. L ittle v. Republic

Refining Co., Ltd.

, 924 F.2d 93, 96 (5th Cir. 1991). Moreover, as

discussed supra, four African-Americans were selected for positions

on the Number 8. Appellants make no argument and point to no

evidence tending to show that they were passed over for positions

on the Number 8 in favor of persons outside the p rotected class.1 Even if Appellants could establish a prima facie case of

race discrimination, the district court’s grant of summary

judgment would remain proper. Donohue advanced a legitimate,

non-discriminatory reason for Appellants’ non-selection, namely,

that they were less qualified than those employees selected for

positions on the Number 8. See McDonnell Douglas Corp. v. Green

, 411 U.S. 792, 802-04 (1973). Appellants failed to prove that

this reason was pretext for discrimination. Id . at 804. Again,

a subjective belief of discrimination cannot, without more,

create a jury issue in the face of a legitimate, nondiscriminatory reason.

7 As such, Appellants fail to establish a prima facie case of race

discrimination. 1

For the reasons st ated above, the judgment of the

district court is AFFIRMED

.